Davidson v. McCandlish & Son

The opinion of the court was delivered, May 18th 1871, by Asnew, J. The bills of reception to the exception of evidence are presented imperfectly in the assignments of error; as if the evidence had been received generally, while each was materially qualified by the judge. In the first bill it appears that the evidence was received reserving its effect upon the recovery, and therefore the question of its effect was carried over into the charge. But there was direct evidence of the contract being made by Mrs. Davidson, she herself having purchased the goods. Her subsequent admissions were, therefore, only corroborative. So also in the second bill assigned for error, the evidence was received only to show the purpose of the payment of the money to Major Rhoads, leaving the appropriation to be governed by other evidence. The only question in the case which deserves notice is whether the insolvency of the husband must be proved before a recovery can be had against husband and wife in an action founded upon her contract for necessaries for herself. This would not admit of a question were it not for the misapplication to the case of the decision in Bear’s Estate, 10 P. E. Smith 430. The 8th section of the Act of 11th April 1848, relating to the estates of married women, contains no such provision of insolvency, as a condition precedent to recovery. It is only after recovery that the question of the husband’s ability to pay arises. The execution must first go out against the husband alone, and a return of no property be made, before execution can go against the wife. It is sufficient to support the action, in the first instance, if the contract of the wife be declared upon, and proved; and that it was for necessaries for the support and maintenance of the family. She is herself a member of the family, and of course necessaries for herself will be included. The insolvency referred to in the opinion in Bear’s Estate had reference to a very different state of facts. There the wife had died before suit, leaving a separate estate, and her husband surviving her. The survivorship of the husband cast the burthen upon him. No action could be brought against the husband and wife, and of course no execution could first go out against him, and then against her. Now admitting that in equity the debt survived against the separate estate of the wife, it is obvious it could do so only on the ground of the husband’s insolvency. The creditor therefore will not be permitted to take his debt in the first instance out of the estate of the wife, for this would frustrate the primary liability of the husband to support his own family, and east it upon the separate estate of the wife. The right to come in upon the estate of 173 a deceased wife, is not within the letter of the act, but only its equity; and hence the husband’s inability to pay the debt at the time -of her decease, is an essential condition to payment out of her estate. We discover no error in the charge of the learned judge, and therefore affirm the judgment.